In Western Australia, ending a residential tenancy agreement is known as ‘termination’. The landlord or tenant can only terminate the agreement under certain conditions listed below. The tenant or landlord may be liable for compensation depending on the nature of the agreement and the reason for termination.
This guide covers landlords (or head-tenants) and tenants (or sub-tenants) in a Residential Tenancy. This applies to the majority of share accommodation and residential property rental situations. To confirm it covers your situation visit What is my share accommodation situation?
How does termination work?
Under Western Australian law, there are a certain number of circumstances where the tenancy can be terminated. The landlord or tenant can choose to terminate the tenancy in some situations, and there are other instances where the tenancy will be automatically terminated.
As a general rule, a tenancy agreement cannot be lawfully terminated before the end of a fixed term, unless it is for a specific reason as listed below for landlords and tenants. Termination before the end of the fixed term for no lawful reason may mean the party terminating the agreement has to compensate the other party.
How do I notify the other party of termination?
In most circumstances, if a landlord or tenant wants to terminate the tenancy, they must notify the other party in writing. You should use the following forms:
- Form 1C—for landlords notifying tenants of termination. This form should not be used if the reason for termination is non-payment of rent.
- Form 1B or Form 1A—for landlords notifying tenants of termination because of non-payment of rent. See the landlord termination section for what form should be used in certain situations.
- Form 22—for tenants notifying landlords of termination.
To make sure that the notice is valid, you should carefully read the information below and complete all sections as required. Depending on the reason for termination, there are different minimum notice periods. To ensure your notice is valid, make sure you give the notice in time.
In some circumstances listed below, the party terminating the agreement can apply directly to the Magistrate’s Court for a termination order. You should use the following forms to do this:
When is the residential tenancy agreement automatically terminated?
A tenancy agreement is automatically terminated if:
- death of all tenants—every tenant under an agreement dies
- superior title—a person with superior title to the landlord become entitled to possession of the premises
- mortgagee—mortgagee take possession
- by agreement—the tenant and landlord agree in writing to terminate the agreement
- merger—the tenant becomes the landlord, i.e. the tenant becomes the owner of the rented premises
Termination and Share Accommodation—how does it work?
If the landlord terminates a co-tenancy, the termination applies to all of the co-tenants.
If one co-tenant leaves the tenancy but the agreement continues for the remaining co-tenants, the leaving co-tenant should make sure they are removed from the agreement as a tenant. It is important that leaving co-tenants do this to avoid liability for anything that happens after they move out.
If the agreement between a landlord and head-tenant is terminated, then the agreement between the head-tenant and sub-tenant will also be terminated. If this occurs, the head-tenant should notify the landlord and sub-tenant as soon as possible to ensure that the sub-tenant moves out in time.
Depending on the circumstances, the head-tenant may be liable to compensate the sub-tenant for terminating the sub-tenancy agreement, especially if termination was before the end of a fixed term.
When can the landlord terminate the agreement?
Under a fixed term tenancy, the landlord can only terminate the agreement before the end of the fixed term in specific circumstances. If the landlord does not have a specific reason for termination, then they can only terminate a fixed term agreement after the end of the fixed term. If the agreement is for a periodic tenancy, then the landlord is free to terminate at any time so long as they do so according to the legal requirements.
When can the tenant terminate the agreement?
Under a fixed term tenancy, the tenant can only terminate the agreement before the end of the fixed term in specific circumstances. If the tenant does not have a specific reason for termination, then they can only terminate a fixed term agreement after the end of the fixed term. If the agreement is for a periodic tenancy, then the tenant is free to terminate at any time so long as they do so according to the legal requirements.
What happens if the tenant abandons the premises?
The tenant abandons the premises if they move out and stop paying rent without any legal justification. Abandonment is a breach of the tenancy agreement, meaning that the tenant may be liable to compensate the landlord for any losses including lost rent.
What can the landlord do if they suspect the premises has been abandoned?
If the landlord reasonably believes that the tenant has abandoned the rented premises, they are a number of steps they can take:
- Inspect premises—the landlord can give the tenant a Form 12: Notice to tenant of abandonment of premises by leaving it at the premises and at the tenant’s last known place of employment. If the tenant does not notify the landlord within 24 hours of the notice being given, the landlord is allowed to enter the premises to determine whether they have been abandoned. Conducting an inspection is a good way to determine whether the premises has actually been abandoned, and whether further action should be taken.
- Give termination notice—the landlord can give the tenant a termination notice Form 1C if they reasonably believe that the premises has been abandoned. The landlord can give termination notice regardless of whether they have inspected the premises as above. If the tenant does not apply to the court within 7 days disputing the notice, then the landlord can consider the premises to be abandoned and retake possession. If the tenant does dispute the notice within 7 days, the court can cancel the termination. If the tenant disputes the notice after 7 days but within 28 days, then the court will terminate the agreement and may order the landlord to compensate the tenant.
- Apply for Court Order—the landlord can also apply directly to the court for a termination order if they reasonably believe that the premises has been abandoned. If the court believes that it has been abandoned then they will terminate the tenancy and the landlord may retake possession. The tenant can dispute a termination order by applying to the court within 28 days of the decision being made.
When can I get compensation?
As a general rule, if either the landlord or tenant suffers some kind of loss as a result of the other party’s breach of the agreement, then they will be entitled to compensation. Compensation should be sought by applying to the court.
There are a number of specific instances where the landlord or tenant may be entitled to compensation:
- Abandonment—if the tenant abandons the premises (see above), the landlord will generally be entitled to compensation for the associated losses. In particular, the landlord will generally be entitled to lost rent. Under a fixed term tenancy, the landlord will be entitled to rent for the balance of the fixed term. However, the landlord must take reasonable steps to minimise or mitigate their losses as much as possible. If they do not, then they will not be entitled to the full compensation amount. Generally, landlords can attempt to mitigate their losses by taking steps to finding a new tenant for the rented premises. The landlord cannot simply leave the premises empty and expect to receive the rent for the remainder of a fixed term.
- Tenant does not move out—if a court has made an order for possession but the tenant has not complied with it, the landlord will be entitled to compensation for any losses they suffer as a result. These losses will generally be because the landlord cannot rent out the premises to a new tenant immediately.
- Compensation to Tenant for mistaken abandonment—if the landlord incorrectly believed that the tenant had abandoned the premises and the agreement was terminated as a result, the landlord may be liable to compensate the tenant. The compensation will generally be for unexpected moving out costs or similar incurred by the tenant.
How does the landlord regain possession after termination (eviction)?
When a court makes a termination order, it will also make a possession order that requires the tenant to move out by a specific time. If the tenant does not move out by the required time, the landlord should firstly notify the tenant and inform them that they must move out immediately. If the tenant still fails to leave, the tenant should notify the police who can enforce the possession order by removing the tenant. Under no circumstances should the landlord attempt to forcibly or physically remove the tenant.
What happens to any goods left behind by the tenant?
What the landlord must do with any goods left behind depends on their nature:
- Perishable or low value goods—the landlord can remove and destroy at least 2 days after the end of the agreement the following:
- Perishable foodstuffs—any food or organic waste or similar left behind
- Low value goods—any goods whose value would be less than the costs of removing, storing and selling them
- Valuable goods—for any other goods, the landlord must keep them in a safe place for at least 60 days after the tenancy agreement is terminated. Within 7 days of putting the goods in storage, the landlord must send a completed Form 2: Notice to Former Tenant as to Disposal of Goods to the tenant’s last known forwarding address, and put an ad in a statewide newspaper using Form 3: Notice as to Disposal of Goods. If the goods are not claimed by the tenant within 60 days of being put in storage, the landlord may sell them at a public auction. The landlord can keep any proceeds necessary to cover their costs of removal and storage. Any other money must be paid into the court.
- Personal documents—personal documents include the following: licenses, passports, bank statements, photographs, letters and other correspondence. The landlord must take care of any personal documents left by the tenant for at least 60 days after the termination of the agreement. During those 60 days, the landlord must make a reasonable effort to contact the tenant to notify them that the documents have been left behind and where they can be collected from. The landlord can destroy or dispose of the documents if they are not claimed within the 60 days. The landlord should note that it may be an offence to destroy items like a passport, in which case they should be returned to the appropriate government authority if possible.
These legal guides provide a brief summary and introduction of the laws and regulations affecting share accommodation. They do not cover all cases in all legal jurisdictions and might not apply in your specific share accommodation situation. It is important that you use this information as a guide only and seek independent Legal Advice or consult the Relevant Acts. We do not accept any liability that may arise from the use of this information.